Activists in Harris County are asking the prosecutor’s office to release a list of police officers whose records prevent or limit their use as court witnesses, due to the officer’s unreliability.
But so far Harris County District Attorney Kim Ogg is relying on a string of rulings from then-Attorney General Greg Abbott holding that the names of those officers and their records are not public.
Ogg refused a request for the list by the Houston Chronicle, prompting a cadre of lawyers and advocates to join the newspaper in urging its release.
The group is motivated by a deadly January raid by Houston police based in part on information that allegedly was fabricated by an officer. Police killed two people in the raid, in which they relied on a search warrant based on that information.
The Houston raid and the resulting campaign to get the list revealed are just the latest items in a controversy that has roiled the criminal justice system in Texas for years. So-called “Brady lists,” of officers who are considered unreliable witnesses due to past bad conduct, are kept by many prosecutor’s offices.
Based on a 1963 federal court ruling, the Brady rule requires prosecutors to reveal to the defense any exculpatory information, including information about the personal integrity of the arresting officers.
Most of the larger municipalities in the state, including Harris County, have agreed to civil service rules that protect details of cop sanctions. Dallas is one of the few that has not.
Dallas County has set the pace for release of the Brady list, which includes names and information on officers with records deemed by prosecutors to be of interest to defense lawyers.
In 2016, the Dallas County District Attorney’s office released an eight-page list of officers who are considered unreliable witnesses due to past conduct. But that conduct didn’t cost the officers their jobs or peace officer certifications, despite violations that range from filing a false report to misdemeanor theft convictions.
“We have not resisted disclosure,” said Frederick Frazier, first vice president of the Dallas Police Association, which claims over 4,000 active and current members, making it the largest labor group in Dallas.
“We want to make sure we’re transparent in getting the information to the DA’s office because sometimes we have officers who don’t even know they are on [the list],” he said.
Frazier said public release of the list can help if an officer doesn’t feel he or she should be on it.
“Sometimes we get them removed [from the list],” he said.
The revelations can be a help to defense attorneys and a pain to police departments, who often must keep officers on their payrolls despite past conduct, due to city and county agreements with police unions or officer associations.
Since 2018, hundreds of Texas law enforcement officers have had their licenses suspended or revoked, usually because they had committed crimes. Five cases involved the filing of false or misleading information.
The Dallas Brady list, though, also shows just how far an officer can go in obfuscation and remain on patrol. Some of the officers on the list had not been found to have lied on publicly available documents or on the witness stand. Instead, their “unreliability” involved dishonesty by the officer in internal affairs investigations of problems like drunk driving, domestic violence, and assault.
Among the officers on Dallas’ most recently released Brady list for offenses involving misstatements or concealment:
- Daniel Babb in 2010 allegedly falsified information on an incident involving unnecessary force. Then-Chief David Brown claimed Babb and several other officers were fired over the incident. However, Babb was reinstated without back pay after the charges were dropped, according to police documents.
- Larry Bankston was injured while chasing a suspect in 2007, then accused of insurance fraud after he was found to have worked while collecting worker’s compensation. He was fired but regained his job after a civil service hearing. In the most recently released list, from 2016, his placement on the list was described as “pending,” for “possible lying [about] off-duty jobs.”
- Bobby Cole made a mistake in 2009 that almost cost him his job. Cole released suspects in two separate incidents and was fired, then hired back. He remains on the most recent Brady list for falsifying a police report.
Police departments sometimes do get rid of employees who are caught lying on police reports. Former Houston police officer Kenneth Troost had his law enforcement license suspended for 10 years in 2017, according to state police certification records, after he was found to have lied on arrest affidavits in two DUI cases, one of which resulted in thousands of dollars spent on legal fees by the victims.
On the criminal justice side, Troost was charged but received no jail time, after he agreed to a pre-trial intervention program. When his license suspension ends, Troost is eligible to be hired by another police department, and testify in cases.
In Houston, Harris County has a database that it uses to organize information about rogue officers, said DA’s office spokesman Dane Schiller. The public does not have access to that material.
“We have greatly streamlined and expanded the disclosure database, so that prosecutors can quickly share with defense lawyers all the information they are entitled to as soon as possible,” Schiller said in an email. “If an officer is so compromised that he or she could not testify in court, and therefore not make arrests, they would likely have been relieved of duty, and therefore unable to make arrests.”
The Texas Monitor this week submitted a request to both Dallas County and the Dallas Police Department for updated versions of their Brady list. The police department asked for extra time to provide the list. Dallas County has not yet acknowledged the request.
“It’s not always the case that we get the list,” said Kathryn Dyer, a defense attorney and clinical professor of law at the University of Texas at Austin. “Even now, when we get a list, there is limited information that a criminal defense attorney is given.”
Dyer was referring to information withheld involving disputed cases. Also, law enforcement agencies don’t always fully describe the violation that got the officer placed on the list.
“The Brady list is a step in the right direction in terms of building trust in police,” Dyer said. “We don’t know some things about police actions that some community members see.”
Steve Miller can be reached at [email protected].